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Wednesday, June 17, 2009

Cognitive Bias and Innocence Commissions

I received word last week of the official demise of the Wisconsin Criminal Justice Study Commission, a law-reform organization of which I had been a member for two years. The Commission emerged from heightened state-wide concerns over wrongful convictions following the DNA-based exoneration of convicted rapist Steven Avery in 2003. The Commission, which was jointly sponsored by the state Department of Justice, the state bar, and the law schools at Marquette and the University of Wisconsin, included prosecutors, police officers, criminal defense lawyers, law professors (I was one of four), and community and crime victim representatives. We had a staff, a budget, and quarterly day-long meetings at which we had fascinating discussions of important issues ranging from the quality of the state crime lab to the underfunding of court-appointed counsel to police interrogation tactics to the use of jailhouse snitches. The vision behind the Commission was that consensus reform proposals emerging from a diverse body of experts and leading practitioners might actually get the state legislature’s attention.

In the end, though, none of the hoped-for consensus reform proposals ever emerged.The group was disbanded when it became clear that the prosecutors were unwilling either to agree to any of the reforms pushed by the defense lawyers or to put forward their own proposals for improving the criminal justice system (besides increasing prosecutor pay).

It was disappointing to see the effort fall apart, and I have been giving some thought as to why it failed.

For one thing, Avery himself – the man who had been the poster child for the innocence movement in Wisconsin – committed a brutal murder a couple years after his release from prison.Needless to say, this took much of the wind out of the reform movement’s sails.(I wonder if there are broader lessons here, in fact, about the risks of criminal justice reformers relying too much on the seemingly compelling stories of exonerees – many of whom ended up as suspects in the first place because of checkered backgrounds.I know Avery is not the only exoneree who has gotten into trouble after being released.)

Another difficulty is that Wisconsin (like just about every other state right now) is experiencing great fiscal pressure, and all of our agencies are fighting tooth and nail to hold onto their budgets.In truth, our prosecutors are underpaid, and I can understand their resistance to any reform (e.g., increasing Wisconsin’s worst-in-the-nation compensation rate for court-appointed counsel) that would require a commitment of the state’s dwindling tax resources.

The size of the Commission was another problem.I appreciate the benefits of a broadly representative group of two or three dozen members, but size and diversity can be a real disadvantage when what is really needed is deal-making between two interest groups, the prosecution and defense bars, that are accustomed to adversarial interactions.With a smaller commission, it might have been easier to overcome the mutual distrust between the groups.Certainly, the transaction costs of cutting a deal would have been much less.

But what strikes me most of all about the prosecution-defense breakdown was the extent to which it turned on competing accounts of cognitive bias.

I am convinced that both sides participated in good faith in the Commission’s deliberations.Those on the prosecution side genuinely wished to avoid wrongful convictions and listened patiently to the information and arguments presented in support of proposed reforms.I heard no accusations that either side was intentionally seeking to subvert justice or otherwise advancing a hidden agenda.Rather, each side was convinced that the other suffered from a fatal cognitive blind spot.

On the defense side, the view was that police and prosecutors did not appreciate their own subconscious tendencies to ignore or downplay the significance of exculpatory evidence (or to exaggerate the significance of dubious inculpatory evidence) once they had settled on the identity of a perpetrator.This raised particular concerns, for instance, with respect to the sharing of case information with crime lab technicians, whose evaluation of physical evidence might be affected by the knowledge of police or prosecutor suspicions.The defense lawyers (and, I think it is fair to say, the academics) on the Commission were convinced that confirmation biases systematically skewed the operation of the criminal justice system, such that wrongful convictions, while not routine, were still of such frequency that significant reforms were warranted.(I should note Commissioner Keith Findley’s Wisconsin Law Review article on cognitive bias in criminal cases as an insightful, and far more nuanced, statement of this basic position.)

On the prosecution side, the view was that the defense lawyers and professors were making too much of a few high-profile DNA-based exonerations that were not truly representative of the operation of the criminal justice system.Police and prosecutors felt that defense-side concerns were speculative.In the absence of hard evidence of systemic failure, they saw no reason not to continue to rely on largely unconstrained police and prosecutor discretion to screen out innocent suspects.

DNA exonerations represent only the tiniest fraction of the total number of criminal convictions obtained over the past few decades, and confirmatory testing is not possible as to the vast majority of these convictions.The exonerations are like a chunk of ice visible on the surface of the ocean. We cannot know for certain whether it is just what it appears to be, or whether it is the tip of a much larger number of wrongful convictions.But whether the exonerations are an ice cube or the tip of an iceberg makes all the difference in deciding whether to implement costly accuracy-enhancing reforms in a time of unprecedented budgetary pressure.

In this state of uncertainty, prosecutors and defense lawyers -- again, I think, acting in good faith all around -- filled in the crucial knowledge gap in predictably self-serving ways.Beginning with these self-serving premises, each side perceived the other to be suffering from an unrecognized cognitive bias.Further deliberations were futile when each side was convinced the other just did not get it.

That, anyway, is my take on the Wisconsin experience.I know that many other law professors have served on similar innocence commissions in other states, and I would be interested in hearing about their experiences.